Sunday, April 26, 2015

Pickering v. Garcetti -- How Mass Opt-Outs Will Aid Teachers Brought Up on Charges Over Opt-Out Advocacy

In the coming prosecutions we will see a collision over state authority and teachers' expression rights in the public interest.  The parents' and students' opt-out activities will support teachers in their claim to use the free speech power as expressed in Pickering, over the state power as expressed in Garcetti.

The massive parent and student support that we have seen in the opt-out rebellion in the last two weeks profoundly shows popular revulsion for the high-stakes standardized tests that have no purpose other than to sort teachers. And as has been shown in statistical analyses, whether by Gary Rubinstein or by the American Statistical Association, Value-Added Measuring is invalid in assessing teachers.

Case law on public employee free speech, briefly
In Pickering v. Board of Education (1968) the Supreme Court justices upheld a teacher's right of free speech. A teacher had written a letter criticizing school board policy. The Court decided that teachers have a right of free speech if they are speaking truthfully and in the public interest.

By contrast a more recent Supreme Court ruling, Garcetti v. Ceballo (2006) the Court held that the interests of smooth government operation trumped government employee free speech rights. The case involved a dispute on the over over proper procedure with a warrant. For a lengthier look at the question of teachers' free speech rights see this posting at Diane Ravitch's blog.

A few days ago I wrote on how the Supreme Court has protected the free speech rights of youths. A case on a youth of the Jehovah's Witnesses faith was supported in a quest of being free from mandatory recitation of the Pledge of Allegiance. In a later case, a youth was supported in challenging the constitutionality of the mandate of reciting a prayer in school. These precedents would support those youths that would resent being compelled to sign a contract of secrecy regarding test content. Further, parental rights have been found to have had given greater weight than property rights.
How all this relates to kids and this month's tests: students should not have to sign secrecy oaths. Parents' rights mean that they can allow their children to opt out of tests.

Teachers: Massive student opt-outs, massive parental OKs are proof that you are speaking to a public interest need
The entire 11th grade in one Seattle school resisted taking the Smarter Balanced Assessment Consortium (SBAC) test. (See "What If They Gave the SBAC and Nobody Took It?") In Long Island the percentage of students\opting out of taking the Common Core-based tests took a meteoric rise. In Baldwin, Nassau County, student opt-outs took a 232 percent increase. (New York State has decided to use its own test, instead of the PARCC or SBAC tests used in other states.) A full 39 percent of third through eighth grade students opted out of taking the English Language Arts "assessment" (test for those of you in the real world). Across New York, the number of opt-outs (from about 73 percent of the districts) there were 185,000 opt-outs on the ELA test, an increase over the 49,000 from last year. About 1.1 million students took the test last year.

These numbers demonstrate that the parents and students are in alignment with the teachers.
So, if and when authorities prosecute teachers, as suggested by this disciplinary threat in Philadelphia, this mandate in New Mexico that compels teachers to withhold their speech on opting out, this suspension of a Rhode Island teacher, and this threat in Rochester, New York, teachers will be able to argue that the Pickering principal of protecting speech that is in the public interest evidently outweighs the Garcetti case emphasis on the smooth operation of the government.

It will be a great fight over the judgments of the two precedential cases. Bring it on.

Teachers should express special thanks to Change the Stakes, NYS Allies for Public Education, United Opt Out, Long Island Parents and Teachers Against Standardized Testing and APPR.